Hearings and Business Meetings

Jul192005

SD-366Energy Committee Hearing Room02:30 PM

Gerald Zackios

The Honorable

STATEMENT OF THE HONORABLE GERALD M. ZACKIOS, MINISTER OF FOREIGN AFFAIRS, REPUBLIC OF THE MARSHALL ISLANDS, TO THE SENATE ENERGY AND NATURAL RESOURCES COMMITTEEJuly 19, 2005

Mr. Chairman, Distinguished Members, Ladies and Gentlemen:

With me here today are two Cabinet Members from President Kessai H. Note’s administration, Alvin T. Jacklick, the Minister of Health, and Donald F. Capelle, the Minister of Justice. I also want to recognize our traditional leaders, Senators, Mayors, and citizens from the Marshall Islands in attendance today – the distance, time, and expense that it took for these people to join us underscores how important nuclear issues are to communities throughout the RMI.

The Government of the Republic of the Marshall Islands thanks the Committee for convening a hearing to examine the legacy of the U.S. nuclear weapons testing program in the RMI, and to consider the RMI’s Changed Circumstances Petition (CCP) to Congress. As you are aware, in the 177 Agreement of the Compact of Free Association, Congress gave the RMI the right to petition Congress for additional assistance related to the nuclear weapons testing program if it can demonstrate that: 1.) it has new and additional information about the damages and injuries from the testing program;2.) this information could not have been reasonably known when the RMI and the U.S. negotiated the Compact, and; 3.) this information renders the $150 million settlement for all past, present and future damages and injuries manifestly inadequate.

The RMI government believes it has met these criteria for changed circumstances and looks to you, the Congress, to respond to our requests for additional assistance to address the enduring radiological problems resulting from the U.S. testing of 67 atmospheric weapons in our nation between 1946-1958.

The 4 atolls and other populations require continued and new U.S. assistanceMy testimony does not provide a history of the U.S. nuclear weapons testing program because I believe that is a matter of Congressional record from previous hearings, but I do want to emphasize that what we now know -- and did not know when the 177 Agreement was negotiated -- is that more people and islands in the RMI were exposed to significant radiation than was understood when the Compact was negotiated, and that smaller doses of radiation cause more harm than previously believed. The U.S. government position regarding radiation-related damages and injuries is based on the premise that only 4 atolls were adversely affected by the testing program, and that only the 2 populations of Rongelap and Utrik were exposed to levels of radiation sufficient to warrant medical monitoring and care. When we look at the cumulative levels of radiation exposure from as many of the 67 tests that we have radiological exposure data for, we see significant exposure to people and islands beyond the confines of the 4 atolls. These radiation levels are higher in the north where populations suffered the brunt of damages and injuries, but radiation levels are significant for other atolls throughout the nation.

As stated in my testimony last month to the House Resources Committee and the Subcommittee on Asia and Pacific of the House International Relations Committee, we are confident that we have met the requirements for changed circumstances and we are anxious to hear Congress’ reactions to our petition. I would like to ask that my testimony to the House be included as part of this hearing record so we can build on that discussion. We believe the House hearing established that radiation exposures allowable under U.S. standards have been significantly reduced since the Compact came into effect, and that the RMI should expect hundreds of cancers to appear in the future for Marshallese alive during the testing program. We want to thank this Committee for requesting the National Cancer Institute’s report on future cancer rates in the RMI related to the U.S. nuclear weapons testing program, as the RMI lacks the resources to undertake this type of analysis.

An unequaled strategic partnershipAs you know, all of what we are discussing today takes place in the context of the RMI’s longstanding commitment to its strategic partnership and historical friendship with the United States. The RMI is extremely proud of the role it played in contributing to the end of the Cold War, despite its radiological burdens. We are thankful that America’s nuclear deterrence has curtailed the global use of nuclear weapons.

Today, the RMI is pleased to be a partner with the U.S. in the development and testing of its missile defense systems on Kwajalein Atoll, which will hopefully reduce the likelihood of any future missile attacks. In addition, we know that our consent to the U.S. Navy’s use of our airspace and sea lanes helps promote security in the Asia-Pacific region.

The RMI is extremely proud, too, of its sons and daughters who currently serve in every branch of the U.S. armed forces and are deployed in both Iraq and Afghanistan. Our commitment to you as a strategic ally goes beyond words; we have contributed our most precious and sacred resources: our sovereign lands, our territorial waters, and – most importantly – our young men and women.

House Concurrent Resolution 410, adopted by the Senate on July 12, 2004, makes specific reference to our unique, enduring, and strong bilateral relationship, and notes:

Whereas the United States has no closer alliance with any nation or group of nations than it does with the Republic of the Marshall Islands under the Compact of Free Association, which continues the strategic partnership and role of the Marshall Islands in United States strategic programs based in the Marshall Islands, which began at the end of World War II and has continued under the trusteeship and Compact to promote the mutual security of the United States and the Marshall Islands…

Whereas the Republic of the Marshall Islands has remained one of the staunchest allies of the United States during the cold war and the war on terrorism, and the voting record of the Republic of the Marshall Islands as a member state in the United Nations General Assembly is unparalleled by any other country, further demonstrating the shared commitment of the two nations to promote democracy and global peace[.]

Given the subject of H. Con. Res. 410, I would like to ask that it be included in its entirety as part of this hearing record. We seek your continued partnership to cope with the serious problems that remain as a result of the U.S. nuclear weapons testing program in our country.

Specific requests to the U.S. CongressIn the Petition to Congress, the RMI government laid out specific requests for remedies to address the on-going radiological burdens that are a direct result of the U.S. nuclear weapons testing program. We ask for your assistance to address these damages and injuries because we lack the human and financial resources to provide the remedies that are required. Although the RMI government has proposed specific remedies, we are certainly willing to explore any ideas that will bring relief from our radiological burdens. Our specific requests to Congress are:

1. $15.7 million so the Nuclear Claims Tribunal can pay existing personal injury awards.As of December 31, 2004, 45% of personal injury awardees with radiological illnesses have died without receiving full compensation for their injuries because the Tribunal does not have sufficient funding to pay the full amount of its awards. $15.7 million represents the shortfall in funds to pay current awards. In the case of the program for U.S. Downwinders, the Attorney General requires that 100% of compensation be paid within 6 weeks of the time an award is made. The RMI agreed to the 177 Agreement of the Compact of Free Association because it provides compensation for the people of the Marshall Islands who contract radiological illnesses. The Nuclear Claims Tribunal created a compensation program based on U.S. programs for Downwinders and Veterans exposed to radiation, but the Tribunal’s program is unique because the people of the Marshall Islands were exposed to more radiation than any other population in the world. As the U.S. National Cancer Institute recently noted in its report to Congress, “[m]ost of our understanding of the biological response to radiation exposure pertains to doses that are much lower than those of the more highly exposed Marshallese…” such as the Hiroshima and Nagasaki A-bomb survivors.

2. Replenish the Nuclear Claims Trust Fund so the Nuclear Claims Tribunal can continue to make personal injury awards in the future. The preceding shortfall from request number 1 represents the current balance on personal injury awards as of June 24, 2005, and does not take into consideration the U.S. National Cancer Institute’s prediction of several hundred more radiation-related cancers in the future. The RMI government believes that the Nuclear Claims Trust Fund needs to be replenished to provide compensation for future radiation-related injuries -- such as the cancers the NCI has told us to expect -- as the intent of the 177 Agreement is for the Tribunal to create and maintain, in perpetuity, a means to address past, present and future consequences of the nuclear weapons testing program. The intent of the 177 Agreement is for the Tribunal to have the future means to pay awards for personal injury but the Tribunal does not have funding to make the future awards agreed to in the 177 Agreement.

3. $1.1 billion so the Nuclear Claims Tribunal can pay for the Enewetak and Bikini private property awards. Like the personal injury awards, the 177 Agreement provides for claimants to receive compensation for private property damages. Since the Tribunal funding is manifestly inadequate and the Tribunal does not have the ability to pay for awards it has made, the intent of the 177 Agreement has not come to fruition. Recognizing that the dollar amounts needed for the private property claims are quite high, the RMI would welcome consideration by Congress to moving the land claims to the U.S. federal courts to review the decisions and the right of claimants to receive awards. It is important to note that the funding of private property awards would enable affected Marshallese to rid their land of radiological contamination, rehabilitate the soil, re-vegetate the land, resettle their home islands, and provide the means to establish a local economy in the fishing and tourism sectors. Thus, the funding would provide the affected communities with the means to return to self-reliance.

4. Establishment of similar consideration for future private property claims.The RMI also requests that a similar mechanism to request number 3 be adopted for pending private property claims. The Tribunal is expected to rule on several private property claims in the near future for atolls such as Rongelap, Utrik, Ailuk, Likiep, and others. Private property claims will become meaningless if the Tribunal is unable to pay out its rewards.

5. $50 million to build adequate infrastructure for the delivery of radiation-related healthcare. The RMI currently lacks the infrastructure to respond to radiation-related illnesses. We believe that infrastructure is a critical component of building the RMI’s capacity to address its radiation-related healthcare needs. We envision a scenario where we establish facilities and services that are reasonable to provide in the RMI, including the ability to monitor exposed populations, diagnose radiological illnesses, and provide treatment for most conditions. When it is not cost effective or practical to provide treatment in the RMI we would like to send our patients to Hawaii to purchase the care we cannot reasonably provide.

6. $45 million each year for 50 years to provide healthcare delivery. Once infrastructure is in place, the RMI needs funding to hire doctors, purchase medication and some services in Hawaii, and to deliver healthcare for patients exposed to radiation. Building the healthcare capacity of the RMI will benefit Marshallese citizens exposed to radiation and provide the capacity to deliver more timely care for radiation-related illnesses, with the hope of identifying medical problems when they are still treatable (before they reach the tertiary stage) and extending the lives of the patients.

7. Assignment for the monitoring of the Runit Dome to a U.S. agency. The portion of the Enewetak population that has resettled one of its home islands needs assurances that its health is not adversely affected by living adjacent to a nuclear waste storage facility. Currently, no U.S. agency has responsibility to monitor the integrity of the Runit Dome. The Defense Nuclear Agency used to have responsibility for this work, but the agency was abolished and responsibility for the Runit Dome was not transferred to another agency.

Focus on the Nuclear Claims Tribunal and healthcare needsOur requests obviously focus on the Nuclear Claims Tribunal and radiation-related healthcare needs. It is appropriate for the RMI to focus two of its major requests on the Tribunal. In lieu of an assessment of damages by the Federal courts, the RMI government accepted the U.S. proposal that it espouse and settle the claims of the Marshallese people arising from the nuclear weapons testing program in conjunction with the establishment of a claims tribunal. The U.S. expressly recognized that its technical assessment of radiological damage to persons and private property in the RMI was limited to a “best effort” at the time of the Compact, and was based on limited disclosure of available information and incomplete scientific knowledge. As a result, further adjudication of claims by an internal RMI nuclear claims tribunal was agreed to by the U.S.

During the U.S. nuclear testing program from 1946 to 1958, the U.S. was the only recognized government in the Marshall Islands. The U.S. federal government exercised absolute power, including eminent domain, by federal edict. The federal government took the private property of our people without legal or political restraint. The right of our people to protection under the 5th Amendment of the U.S. Constitution was not recognized in the U.S. federal courts until after the nuclear tests were done.

Some of our homelands were destroyed forever, vaporized in land, air and water-based nuclear tests. Some are still too contaminated for resettlement. The loss and damage to land, the dislocation of peoples, the cost of clean-up and resettlement, were only partially compensated through the Nuclear Claims Trust Fund. Full and just compensation was promised by Congress in the Compact, but could not be quantified until the land claims were adjudicated by the Nuclear Claims Tribunal.

Under the Compact, Congress removed our claims from the federal courts, and the Nuclear Claims Tribunal was created as an alternative forum for just compensation. The awards of the Tribunal are substantially greater than the compensation that has been paid. The U.S. refused to discuss this problem during the Compact renegotiations. This is a legal matter, not just a political question. For that reason, the RMI and the land claimants propose that the Tribunal awards be reviewed by the federal courts in the same manner as judgments of RMI courts against the U.S. under Compact Section 174(c).

The RMI government appears before you today to inform you that the Nuclear Claims Tribunal in the RMI is not able to perform the role that Congress intended because of inadequate funding. The independent assessment of the Tribunal made by former U.S. Attorney General Richard Thornburgh in 2003 confirmed that the Tribunal adhered to American standards of jurisprudence, and concluded that the funding available to compensate for private property damage and personal injury is “manifestly inadequate.” I would like to enter the executive summary of the Thornburgh report as part of this hearing record. I would also like to note that Congress has provided additional appropriations for U.S. Downwinders and DOE employees when supplemental funding was needed to make awards for claimants.

The RMI has also focused on healthcare delivery because this is an area where an urgent need exists. People in the RMI with radiological conditions are dying. We are certainly appreciative of the DOE medical monitoring and care program for a small segment of our population, and for the U.S. contributions to the 177 Health Care Program for the 4 atolls. I would also like to thank this Committee for referring these issues to the Appropriations Committee, and to Mr. Domenici and Mr. Burns for their leadership on that Committee, and hope that they will support full funding this year in conference with the House. However, despite our best intentions to date, these programs do not address the full range of radiological healthcare burdens in the RMI.

One of the measures adopted under the Section 177 Agreement to compensate the people and government of the Marshall Islands was a healthcare program for 4 of the atoll populations impacted by the testing program, including those who were downwind from one or more test, and the awardees of the personal injury claims from the Tribunal who manifest radiation-related illnesses in their tertiary phases. The medical surveillance and healthcare program established under the Section 177 Agreement has proven to be manifestly inadequate given the healthcare needs of the affected communities.

The 177 Health Care Program -- the only other radiation-related healthcare program besides the DOE program for less than 120 acutely exposed patients from Rongelap and Utrik -- was asked to deliver appropriate healthcare services within an RMI health infrastructure that was not prepared or equipped to deliver the necessary level of healthcare. The program's funding -- $2 million per year for 17 years (from January 1987 to January 2004), and $500,000 for February to September 2004, was drawn down from the Nuclear Claims Fund provided by the U.S. in fulfillment of its commitment under the 177 Agreement. This program never included an inflation adjustment, and resulted in the equivalent of less than $12 per patient per month compared to an average U.S. expenditure of $230 per person per month for similar services. The unstable and inadequate funding in recent years creates a healthcare crisis for our nation, particularly at a time when the people alive during the testing program are becoming older and are more likely to develop or have significant radiation-related illnesses, such as the cancers that the NCI study reports.

An example of a population that slipped through the cracks of U.S. assistance include the 401 people residing on Ailuk Atoll during the Bravo test on March 1, 1954 -- a population that U.S. government documents concede should have been evacuated after the Bravo test because of significant exposure to radiation. The U.S. government decided not to evacuate the Ailukese because its population -- almost 4 times as large as the evacuated population from Utrik -- was considered too large and cumbersome to relocate. Consequently, the people of Ailuk have never been eligible for medical monitoring and care, and the residents of that atoll continued to live in a highly contaminated environment after the Bravo test, while the downwind populations of Rongelap and Utrik were evacuated by the U.S. government. I would like to request that the U.S. government document regarding Ailuk’s evacuation post-Bravo be included as part of the hearing record.

Similar cases can be made for other atoll populations alive during the testing program (such as exposure levels on Kwajalein included in the RMI’s CCP), for those born and raised in radiologically contaminated environments, and for workers from atolls all over the Marshall Islands and who worked as DOE contractors to support clean-up efforts on Bikini and Enewetak. This latter group is not eligible for U.S. compensation or healthcare programs for DOE workers exposed to occupational sources of radiation as part of the Energy Employees Occupational Illness Compensation Act (EEOICPA) because they are not U.S. citizens. In this regard, we want to thank Mr. Bingaman for including the Marshall Islands in the list of locations where DOE workers exposed to radiation could receive medical care and compensation. The interpretation of the Executive Branch is that non-Americans – such as former citizens of the U.S. trust territory – are not eligible for the program because they are not U.S. citizens. We request that citizens of the former U.S. trust territory employed by DOE be eligible for inclusion in this program since neither funding nor healthcare are available to these workers through other means.

The RMI lacks the ability to provide the healthcare that is warranted for the populations exposed to radiation. During the May, 2005 joint hearing of the House Resources Committee and the Subcommittee on Asia and Pacific of the House International Relations Committee, the National Cancer Institute representative told us that the RMI should anticipate hundreds more radiation-related cancers in the future -- these are cancers that would not exist in the RMI if the U.S. nuclear weapons testing program did not take place. As we told the House committees, this news is devastating to the RMI as we lack the infrastructure, and the human and financial resources to respond to these cancers. Every family in the RMI has a first-hand understanding of the pain and suffering cancer patients and their loved ones endure, so it is difficult for us -- even from an emotional standpoint -- to anticipate several hundred more cancers linked to the testing program. We thought most of the healthcare burdens were behind us, but it is clear that we now need to adjust our thinking and plan for the future. The NCI also tells us that these cancers will not be limited to just the 4 atolls, yet the 4 atolls are the only populations in the RMI that receive any radiation-related healthcare. All of our citizens who contract cancers will need healthcare -- healthcare that we are currently unable to provide.

Provisions of the Compact, as amendedDuring the House hearing in May, witnesses from the U. S. Administration suggested that the RMI had the ability to deal with healthcare or other issues arising from the nuclear testing program by allocating a portion of its Compact sector health care grants for these needs. First, as I noted during the House hearing, this suggestion is contrary to the position taken by the Administration during the amended Compact negotiations. During those negotiations, the Administration was adamant that issues concerning residual problems relating to the Section 177 Agreement would not be addressed during those talks despite efforts by the RMI to raise these issues at that time. This is evidenced by U.S. Compact Negotiator Al Short’s letter to me dated March 27, 2002, stating the Administration’s position on the matter. I would like to include that letter as part of the hearing record. As noted in that letter, the RMI was told that these issues would be considered and dealt with by the Congress under the Changed Circumstances Petition that was pending at that time.

Thus, it is clear from the record that the amended Compact does not take into account or include funding necessary to address the healthcare or other continuing needs of the RMI to address the ongoing consequences of the nuclear testing program. If the RMI were to allocate funds necessary to address these issues from funds available under the Compact, as amended, it would result in a substantial reduction in other essential healthcare services to the people of the Marshall Islands and would also adversely affect other priority Compact sector grant assistance such as education.

The RMI was told that issues related to the consequences of the nuclear testing program would be addressed by the U.S. Congress within the framework of the changed circumstances petition as authorized by Article IX of the Section 177 Agreement, which is why we are here before you today.

Changed Circumstances continue to emergeBetween the House hearing in May and today’s hearing still more information about the health effects of radiation exposure has come to light -- information that represents changed circumstances because it was unknown when the U.S. and the RMI negotiated the Compact of Free Association and the 177 Agreement. This new information renders past assistance manifestly inadequate, since that assistance does not include healthcare designed to address these newly identified needs. Specifically, there is a new study from the National Academy of Sciences (NAS) about the effects of low doses of radiation, including an important discussion about cancer risks for women and children. The Biological Effects of Ionizing Radiation (BEIR) series of reports by the NAS are regarded as the most authoritative basis for radiation risk estimation and radiation protection regulations in the United States.

The latest report on radiation risk, called the BEIR VII report, was sponsored by the U.S. departments of Defense, Energy, and Homeland Security, the U.S. Nuclear Regulatory Commission, and the U.S. Environmental Protection Agency, and concludes that low levels of exposure to ionizing radiation may cause harm in human beings and are likely to pose some risk of adverse health effects. The report specifically focuses on low-dose, low-LET -- "linear energy transfer" -- ionizing radiation that can cause DNA damage and eventually lead to cancers, and calls for further research to determine whether low doses of radiation may cause other health problems, such as heart disease and stroke, which can occur with high doses of low-LET radiation. What is most clear from the review of available data is that the smallest dose of low-level ionizing radiation has the potential to cause an increase in health risks to humans. As stated by the chairman for the report, Richard R. Monson, associate dean for professional education and professor of epidemiology, Harvard School of Public Health:

The scientific research base shows that there is no threshold of exposure below which low levels of ionizing radiation can be demonstrated to be harmless or beneficial… The health risks – particularly the development of solid cancers in organs – rise proportionally with exposure. At low doses of radiation, the risk of inducing solid cancers is very small. As the overall lifetime exposure increases, so does the risk.

This finding is extremely significant to the RMI as everyone alive during the testing program was exposed to radiation from the 67 atmospheric tests, and thousands more people were exposed to environmental sources of radiation when they were born and/or raised on radiological contaminated islands.

Interestingly, survivors of atomic bombings in Hiroshima and Nagasaki, Japan, were the primary sources of data to estimate the risks of most solid cancers and leukemia from exposure to ionizing radiation, yet the U.S. National Cancer Institute acknowledges that because radiation exposure in the RMI exceeds other locations, exposure and outcomes in the RMI cannot be compared to other locations such as Japan. We are left to conclude, therefore, that any findings in the Japanese population are likely exacerbated in the RMI. The BEIR VII report is also important because it notes that adverse hereditary health effects that could be attributed to radiation have not been found in studies of children whose parents were exposed to radiation from the atomic bombs in Japan, but studies of mice and other organisms have produced extensive data showing that radiation-induced cell mutations in sperm and eggs can be passed on to offspring. The report states that there is no reason to believe that such mutations could not also be passed on to human offspring, as the failure to observe such effects in Hiroshima and Nagasaki probably reflects an insufficiently large survivor population.

The BEIR VII report also updates the risk of dying from cancer for women and men, and for children compared to adults. According to the report, the risk of dying from cancer due to radiation exposure was believed in 1990 to be 5% higher for women compared to men; this latest report now updates the risk to 37.5% higher for women than for men. Furthermore, the risks for all solid tumors, like lung, breast, and prostate, added together are almost 50 percent greater for women than men.

The BEIR VII report estimates that the differential risk for children is even greater. For instance, the same radiation in the first year of life for boys produces three to four times the cancer risk as exposure between the ages of 20 and 50. Female infants have almost double the risk as male infants. This information is obviously of concern to us, and we seek the assistance of the U.S. government to apply these findings to the Marshallese context.

Looking for equityThe RMI is in a very precarious position. We have very significant radiological burdens in the RMI that we lack the resources, knowledge, or capacity to address. These radiological burdens -- including the need to clean-up private property and return populations to their home islands, and the need to provide adequate healthcare and monitoring to all communities exposed to significant levels of radiation -- are expensive. Despite the costs of remedies, we are simply asking the U.S. government for the same assistance, services, and compensation that it extends to its own citizens exposed to radiation or whose private property is contaminated.

The RMI is extremely worried about the well-being of the people in the Marshall Islands who were exposed to radiation from the 67 atmospheric atomic and thermonuclear weapons tests in the RMI, as well as the populations resettled on contaminated islands, including children who were born and raised in environments laced with radiation from the U.S. nuclear weapons tests.

More than ever, it is clear to us that the U.S. government’s position regarding radiation exposure in the RMI is antiquated, and needs to be updated. The U.S. position maintains that radiation exposed only the populations of Rongelap and Utrik to levels of radiation sufficient to warrant U.S.-provided healthcare for radiation related illnesses. Estimated numbers by the NCI for future radiation-related cancers are higher than the current number of patients currently enrolled in the Department of Energy’s medical monitoring and care program and higher than the total populations for Rongelap and Utrik alive during the testing program. The NCI’s predictions for cancers include likely occurrence for atolls throughout the RMI, not just the northern-most atolls. The BEIR VII conclusions that low doses of radiation increase risk of harm to human beings, and that there is a substantially greater risk of dying from cancer for women and children, compels us to take further action, and requires our nations to rethink radiation-related healthcare in the RMI. Remedies are clearly needed, but without U.S. assistance the RMI will continue to lack the capacity to respond to the urgent radiation-related healthcare needs confronting us.

Since the U.S. nuclear weapons testing program was conducted at a time when the United States governed the Marshall Islands with the same authorities extended to the United States itself, we believe the same standard of care, safety, redress of grievances and justice that Congress has adopted with respect to U.S. citizens exposed to radiation should be honored for the Marshallese people. In particular, we think there should be equity in terms of healthcare standards and delivery, environmental clean-up, radiation protection standards for the public, and compensation. The RMI government hopes to work with this Committee and the House committees that convened a similar hearing in May to develop appropriate authorizing and appropriations language in the upcoming year. The well-being of our citizens depends on our action.

Finally, I want to thank this Committee for its continued willingness to address radiological issues in the RMI since the termination of the trust territory, and for the Committee’s creativity in addressing our needs. The RMI is grateful measures adopted in the past to address healthcare, resettlement, trust funds, and clean-up. We hope that today’s hearing is the beginning of a process to address -- together -- the fundamental inadequacies of our ability to manage on-going and future radiological burdens in the RMI.